The Trial of David Hicks and the Law on the Use of Force
Introduction David Hicks is an Australian citizen in the custody of the government of the United S-ates of America at Guantanamo Bay, Cuba. He was alleged to have served with the Talibar and al-Qaeda in Afghanistan. This led to his detention for more than five years as an 'unlaNful combatant'. This category, it is claimed, is outside the norn1al protections of United S:ates Constitutional due process and criminal law, and outside relevant provision; of international law especially the Geneva Conventions.
Hicks' initial charges alleged conspiracy, attempted murder by an unprivil~ged belligerent and aiding the enemy. His trial before a United States military commission was due to begin in November 2005. These proceedings were cancelled following the Sup·eme Court rnling in Hamdan v Rum~feld that declared the military commission precess unconstitutional and illegal. The response of the United States Government was then to pass the Mil tary Comm;ssions Act of20062 and press new charges. The new charges encompassed provrling material supp01i for terrorism and attempted murder in violation of the law of war.3 Cn 26 March 2007 Hicks was convicted on his own guilty pleas for the fonncr, sentenced to s:ven years imprisonment, all but nine months suspended and most of it to be served i-1 an Australian prison.4 This note focuses on the legality (as opposed to the expediency or propriety) of the process. The underlying reasoning is unaffected by David Hicks hc.ving entered a guilty plea, the validity of which is highly debatable.
Distinctions and their Implications The so-called '·war against terror' raises numerous issues fraught with distinctions hc-ving far-reaching implications (Megret 2002:361---399, esp 377). For example, the distindons between war (a state of armed conflict) and peace (the absence of am1ed conflic:) or between combatants (those who engage in armed hostilities) and non-combatants (!hose who do not, or no longer, engage in armed hostilities), extra-territorial domestic crininal law enforcement and am1ed conflict, etc are all consciously effaced to the detrime1t of David Hicks. The legal basis for his trial is partly found in the case of Ex purte Quirin. Here the Supreme Court of the United States upheld the jurisdiction of a United States military tribunal over unlawful enemy combatants and approved their being sentenced to death The
On 29 June 2006. the court issued a 5-3 decision holding that it (contrary to the Federal Govemnent's arguments) had jurisdiction, that the Federal Government did not have authonty to set up these par~cular military commissions, and that the military commissions were illegal under both the Uniform C
court stated that: 'Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful' (Ex parte Quirin at 31 ). This decision however only covers conduct of hostilities. It in no way refers to the reasons for engaging in hostilities or the capacity to engage in anned conflict and is therefore (as explained below) of limited utility in Hicks' specific circumstances. To start with the term itself, the 'war against terror' is a misnomer in that it is neither a war nor is it even against terror.5 To be sure, there are wars against the States of Afghanistan and Iraq that can be located in both space and time. But the noun 'terror' essentially references a tactic of political violence unrestricted in actors, time and space. The point is that the figurative rubric of a war against terror makes all these literal wars actually possible in the political and physical realms (Megret 2002:esp377). However, Realpolitik doesn't make good law. Neither does it make bad law. It is simply not the law. Crucially, international law distinguishes between why and hovv one fights. Reasons permissible to fight are found in the law on the use of force (principally the United Nations Charter and customary international law) while how one fights is governed by the law of armed conflict/international humanitarian law (codified in the Hague and Geneva Conventions). So, for example, deliberately targeting civilians is a breach of the latter while taking up arms in self-defence is in keeping with the fonner. In the 'war against terror' this fundamental distinction is finessed for political capital. The cnuse for which the terrorists fight is discredited by the methods that they use (deliberately targetmg civilians) while the methods that the authorities use (re-defining torture, domestic surveillance, i11vasion of countries, etc) are absolved by the cause (security) for which the authorities fight
Because the !avv has to he manirnlated in one 'Nay t1r auot!ier to justify this logic.. issut~'i of abuse of po"vcr by illeg.itimati.; use of legal rroccssc~; arise. Omting the jurisdiction of non-military couns and unilaterally susrending the operrilion or iaw are by now fomiliar tactics.
Lack of Due Process and Abuse of Process The legality of the entire process is thus open to question. John Howard, the Australian Prime Minister, stat.~d that it was well within his power to free Hicks at any time presumably even witryout triaL 6 He, instead, elected to ask the United States to speed up Hicks' proposed trial. 7 This was an unwitting but nonetheless unmistakeable admission of the political calculations involved in the affair, resulting in a concocted semantic legal vacuum currently filled by political power and discretion without recourse to objective adjudication. In contrast to Australia, the British demanded and got their citizens repatriated home from Guantanamo Bay. In fact, David Hicks sought and obtained British citizenship to avail
5 The Director of Public Prosecutions m England and Wales, Sir Ken Macdonald had occasion to say 'We need to be very clear about thi~. 011 the streets of London. thcr c 1~ n 0 such thing dS a "war on terror", just as there can be no such thing as a '·war on drug~·": · ·http:1 1 1~01itlc~.guardian.co.uk/terrorism/story/ 0,, 1997247,00.html> accessed 21 February 2007. 6
De-Internationalising and Domesticating the Law on the Use of Force While the United States excludes its own use of force from any legal purview, whether domestic or international, it actively criminalises other state's and even individuals' resort to armed force against itself. Such use of force is then characterised as a breach of United States domestic criminal law rather than international criminal law. At the Rome conference for the establishment of the International Criminal Court, the United States opposed development of the law on the use of force by international codification of a crime of aggression. 10 Notwithstanding, the Military Commissions Act of 2006 in s948 defines lai1ful enemy combatants as members of regular forces, militia, or volunteer corps of a state, or members of a regular armed force professing allegiance to a government not recognised by the United States, engaged in hostilities against it. This drafting explicitly distinguishes lawful combatants from unllrn;fid enemy combatants who are persons that include members of the Taliban and al Qaeda. The legal consequence of such classifil:ation is that the Taliban and al Qaeda affiliates are, by definition, unlawful enemy combatants.fc>r the mere j(xt u.ltaking part in hostiliries against the United States. Here the United States conflates the distinct.ion between recognising a government and recognising a state. It did not recognise the Taliban as the lawful government of Afghanistan even when the Taliban was in control of 70 per cent of the country's territory but recognised the Ncnihem Alliance instead that controlled 30 per cent. Therefore, it withheld from members of the Taliban the privilege of being lawful combatants. However, Afghanistan is and was a state party to the Geneva Conventions. This has not changed whether or not its government was recognised. This is likewise for the al Qaeda members captured in Afghanistan engaging in hostilities on behalf of the Taliban government. It is
8
not possible to make war against a non-state actor outside your territory without invitation from the state it is operating in (or from) unless you declare war on that state and conduct hostilities on that basis. Therefore the criminalising of unlawful resort to political violence is laudable and to be supported by reference to all states in international law and not just a single state through its domestic law.
Conclusion It is said that David Hicks was an unlawful combatant, which deprives him of the protections of the law applicable in both war and peace but without waiving his own obligation to obey them. He is in a double bind, having all the obligations under both United States domestic criminal law and international law but none of the entitlements under the same laws, while his accusers have all of the entitlements (to prosecute breaches of domestic criminal law and wars on other countries) but none of the obligations (to respect human rights and the international rule of law). 11 David Hicks and the rule of law deserve better respect. He deserves to be treated by a legal process that is untangled from the politics of expediency.
Edwin Bikundo PhD Candidate, University of Sydney
Case
Er: parfe Quirh1 3 17 US 1 ( 1942 ).
Reference
Megret, F (2002) "'\Var'"'! tcgat Semamics and the Move lO V iolcnce'. Eumperm )ournal cf lnt2rnoriond Li'.rw. vol ! 3., no 2, p 361
11 By analogy, what if the Iraqis, prior to the Second Gulf War, Ind declaxed they did not recognise the United States Republican administration due to the controversrnl 2000 presidential election and that therefore all American soldiers in Iraq were unlawful combatants and liable for :Jros:ecution under the death penalty.